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Four people accused of burning a cross next to the home of a mixed race family will stand trial together, a San Luis Obispo County judge has ruled.

The defendants were charged with a hate crime for setting the 11-foot cross on fire in the early morning hours of March 18th, prosecutors told NBC LA. The wooden cross had been taken from Saint John’s Lutheran Church in Arroyo Grande.

The cross was set ablaze in the same location where the father of defendant Jason Kahn was shot and killed by sheriff deputies 17 years ago. The father, Rick Kahn, had been sought for questioning in a murder case, and after his death, Jason Kahn, then in his late teens, was convicted as an accessory to that murder.

In the cross-burning case, Jason Kahn is also facing a witness intimidation charge in addition to the other felonies, prosecutors said.

Lawyers for the defendants have argued that the cross-burning was an expression of free speech.
But prosecutors say it was a hate crime, and point to white supremacist tattoos worn by Jason Kahn, among other indications.

They have charged Kahn, 36, Sara Methany, 24, Jeremiah Hernandez, 32, and William Soto, 20, with arson, terrorism, cross-burning and conspiracy to burn a cross.

Defense lawyers tried to get the hate crime allegations dismissed because the cross was not burned on the property where the family lived, but rather in a yard next door. According to newspaper reports, defense lawyers have also suggested that the act was protected as an expression of free speech.

Arroyo Grande police said at the time of the arrests that the defendants did not personally know the family who lived in the house. But police said they were aware that at least one family member, a 19-year-old woman, was of African-American descent.

The district attorney’s office estimated if Kahn were convicted of the charges against him he would face 20 years in prison and a second “strike” since he had previously been convicted of a felony.

The other defendants are facing up to seven years in prison on the arson and hate crime allegations.

Kahn’s attorney, however, has offered an alternate theory of the case which he hopes will exonerate his client.

‘What I think the evidence is going to show is a not-well-thought out tribute to Mr. Kahn’s father,” said Trace Milan, Kahn’s lawyer.

“The cross was burned in the exact place where Kahn’s father’s body lay dying 17 years ago,” he added.

Milan said Kahn was in custody at the time and was prosecuted and not allowed to attend any ceremony or funeral for his father.

“This was a memorial to him,” he said, adding “obviously this is something we want to discourage but when all the facts are known this was not street terrorism nor a hate crime.”

Milan said he plans to try to have the preliminary hearing findings thrown out at a hearing on 7th at which time a second judge will review the findings of the first judge.

But Milan added he plans to go even further and file an appeal on the grounds of the constitutionality of the charges. He claimed the crimes of street terrorism and hate crimes requires a proof of intent and he said prosecutors cannot prove the defendants specifically intended to terrorize an African American teenager.

He said there is another reason the case may not go to trial this month. One defendant is seeking a “speedy trial” but his client wants the case continued because new witnesses have become available.

San Luis Obispo Chief Deputy District Attorney Jerret Gran said moves to get such cases dismissed are standard.

The case is scheduled to go to trial on Nov. 28, but a hearing will be conducted next week to actually schedule the trial.